On day 5 of redistricting trial, Texas rebuts claim that current political maps discriminate

As lawyers for Texas defended the state's political maps against charges of intentional discrimination, a lawmaker at the center of the case invoked "legislative privilege" Friday to avoid answering some questions.

SAN ANTONIO — The State of Texas pushed back Friday against allegations that lawmakers intentionally discriminated against millions of Hispanic and black voters in adopting its current political maps, with the state's lawyers trying to convince federal judges not to order changes ahead of the 2018 elections to better accommodate the state’s surging population of minority voters.

“They were legal and complied with the law,” state Rep. Drew Darby said of the maps, testifying before a three-judge panel. Darby, a Republican from San Angelo, chaired the House Committee on Redistricting in 2013, when lawmakers approved state House and Congressional maps that are the subject of trial this week, the latest in six years of legal wrangling.

Earlier this year, the judges had found intentional discrimination in maps lawmakers’ drew in 2011. But those maps never took effect, because the court temporarily tweaked them during a 2012 election scramble. In hopes of halting the litigation, the 2013 Texas Legislature made those court-drawn maps permanent.

Minority groups challenging the state argue the 2013 maps still fall far short in addressing voting rights violations that the judges flagged in their previous rulings, and they call lawmakers’ decision to adopt the court-drawn maps another effort to minimize the political clout of voters of color.

The state’s lawyers focused almost exclusively on Darby’s past statements and other public records to suggest he and other leaders did listen to concerns from Hispanic and black lawmakers. The lawyers also highlighted minor amendments to the House map that Darby allowed during a floor debate in 2013.

Yet more noticeable on Friday were details Darby refused to share by invoking “legislative privilege,” a legal protection allowing Darby to decline to answer questions about communications with other lawmakers and state lawyers and his “thoughts and mental impressions” about policy decisions.

Plaintiffs’ lawyers repeatedly reminded the judges of the questions — many seemingly crucial for divining intent — that Darby would not answer about his colleagues’ actions.

When the state earlier in the week cited “legislative privilege” to prevent disclosure of some of Darby’s 2013 emails, Judge Xavier Rodriguez spoke of the difficulties it presented in such cases.

“How is a plaintiff in a Voting Rights Act case going to understand the intent of the legislature, if it can’t look at documents?” he asked.

The state on Friday also tried rebutting arguments that its maps need rejiggering to accommodate the state’s large growing share of minority voters.

Texas’ population is soaring, enough to give it four new congressional seats in the most recent round of redistricting, which relied on the 2010 census. No other state added more than two seats.

Texas is also becoming less white each day, creating headaches for Republicans, who currently control state government, as minorities — particularly Hispanic and black voters — overwhelmingly support Democrats in elections.

Hispanic and black voters accounted for nearly 79 percent of the state’s growth from 2000 to 2010. And those groups comprised nearly 40 percent of Texas’ voting age population during the latest census, a proportion that has only since grown.

Minority groups see their voters as grossly underrepresented on the state’s political maps. In redrawing the Congressional map in 2011, for instance, the Legislature offered only 10 districts out of 36 total in which minorities could elect candidates of their choice, according to experts offered by the plaintiffs. The current fought-over map added just one such “opportunity district.”

Throughout the week, lawyers representing plaintiffs have offered several alternative House and congressional maps, which they say demonstrate ways to add more opportunity districts and fix violations judges have flagged in past rulings. (The maps were not aimed at maximizing minority representation in Texas, but rather to meet legal standards.)

John Alford, a political science professor at Rice University who the state offered as an expert witness, dismissed those maps as not addressing the problem that the plantiffs claim exist.

“It’s not possible to create an additional majority-minority district in Texas,” Alford said.

In wrangling over the Congressional map, minority groups have largely homed in on several Dallas-Fort Worth area districts, parts of Harris County, U.S. Rep. Will Hurd’s Congressional District 23, which stretches from San Antonio to El Paso and takes in most of the Texas-Mexico border; Congressional District 27, represented by Blake Farenthold, R-Corpus Christi; and U.S. Rep Lloyd Doggett’s Congressional District 35, which stretches from Austin into San Antonio narrowly along Interstate 35.

In their ruling on the 2011 maps, judges found discrimination — some of it intentional — in CD-23, CD-27 and CD-35. Judges also found lawmakers illegally “packed” and cracked” predominantly Hispanic and black communities in the Dallas-Fort Worth area, a method of diluting their political strength.

The 2013 map did not alter boundaries in several of those flagged areas.

“I don’t think there’s ever been a more exhaustive attempt to redraw a map, than the one here in Texas,” Alford testified.

The state on Friday sought to poke holes in the maps offered by plaintiffs, which rely partly on “coalition” districts where Hispanic and black voters, only in the majority when combined, could elect candidates of their choice — at least in general elections when they overwhelmingly favor Democrats.

Alford, the state’s expert, criticized the plaintiffs’ demonstrated coalition districts, arguing — largely relying on past Democratic primary election results — that Hispanic and black voters in various districts vote differently, preferring candidates of their own race. He underplayed general election data and testimony from voters, which the plaintiffs point to, suggesting the minority voting groups clearly coalesce around Democrats following primaries.

In that sense, Alford testified, the maps plaintiffs offered would not address Hispanic voters’ statewide underrepresentation.

Lawyers’ for the plaintiffs criticized the minimal value Alford put on general election data, and they highlighted one instance — an even split in black and Hispanic support for U.S. Rep. Mark Veasey, D-Fort Worth, in his 2014 primary win — that did not fit within Alford’s analysis.

The trial is scheduled to wrap up on Saturday. Hurd is expected to testify, and the judges are also expected to pepper lawyers with a lengthy set of lingering questions.

Disclosure: Rice University has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.

Read related Tribune coverage:

An ongoing voting rights battle in the Houston suburb of Pasadena could have Texas-wide legal ramifications. [Full story]

As part of a weeklong trial, the state's legal foes are turning their attention to lawmakers' actions in 2013 in an effort to finally resolve years-long litigation over Texas' political maps. [Full story]

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